Case T-437/08: Action brought on 6 October 2008 — CDC Hydrogene Peroxide v Commission
Date: 2008-10-06
Institutions: Court of First Instance
Subjects: EU law, European Community, action for annulment (EU), competition law, hydrogen

C 313/48

EN

Official Journal of the European Union

6.12.2008

Action brought on 3 October 2008 — Tokita Management
Service v OHIM — Eminent Food (TOMATOBERRY)

Division's finding that the opposition must be upheld on the
ground of Article 8(1)(a) of Council Regulation No 40/94 was
correct.

(Case T-435/08)

(2008/C 313/86)

Language in which the application was lodged: English

Action brought on 6 October 2008 — CDC Hydrogene
Peroxide v Commission

Parties

Applicant: Tokita Management Service Corp.
Japan)
(represented by: P. Brownlow and N. Jenkins, Solicitors and A.
Bryson, Barrister)

(Saitama,

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Eminent
Food BV (Bussum, Netherlands)

Parties

(Case T-437/08)

(2008/C 313/87)

Language of the case: German

Form of order sought

Applicant: CDC Hydrogene Peroxide Cartel Damage Claims (CDC
Hydrogene Peroxide) (represented by: R. Wirtz, lawyer)

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 18 July 2008 in case R 1219/2007-4; and

Defendant: Commission of the European Communities

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TOMATO-
BERRY’ for goods in class 31 — application No 3 797 909

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

or

sign cited: Community

Mark
trade mark registration
No 3 344 711 of the figurative mark ‘Tomberry’ for goods and
services in classes 31, 35 and 44

Decision of the Opposition Division: Upheld the opposition in its
entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
the trade marks concerned are highly similar visually and
conceptually; infringement of Article 8(1)(a) and/or Article 73
and/or Article 74(1) of Council Regulation No 40/94 as the
Board of Appeal erred in its conclusion that the Opposition

Form of order sought

— declare that decision SG.E3/MM/psi D(2008) 6658 of the
to
Commission of 8 August 2008 is void pursuant
Article 231(1) EC;

— order the defendant to pay the applicant's necessary costs
under Article 87(2) of the Rules of Procedure of the Court
of First Instance.

Pleas in law and main arguments

The applicant, which brings actions for compensation of under-
takings injured by the European hydrogen peroxide cartel, chal-
lenges the decision of the Commission of 8 August 2008, by
which its application on the basis of Article 2(1) of Regulation
(EC) No 1049/2001 (1)
for full access to the statement of
contents of the case-file in Case COMP/F/38.620 — Hydrogen
peroxide and perborate was refused.

In support of its claims the applicant complains of the infringe-
ment of the first and third indent of Article 4(2) of Regulation
(EC) No 1049/2001, as the exceptions contained in those provi-
sions were misinterpreted or misapplied.

The applicant relies on four pleas in law in that regard.

6.12.2008

EN

Official Journal of the European Union

C 313/49

First, the decision infringes the principle of strict interpretation
and application of
the exception. The Commission has not
demonstrated any actual foreseeable and not merely hypothe-
tical risk of detriment to the interests protected.

Secondly, the contested decision is inconsistent with the princi-
ples of law of effective compensation for infringements of EC
competition law, as the interest of the injured parties in the
details of the infringement is to be valued more highly than the
interest of the undertakings in not disclosing to the public the
details of the infringement alleged by the Commission and the
scope of its cooperation with the Commission within the frame-
work of the leniency notice.

Thirdly, the contested decision is not justified by the exception
in the
indent of Article 4(2) of Regulation (EC)
No 1049/2001 concerning the protection of commercial inter-
ests.

first

Fourthly, the contested decision is not justified by the exception
third indent of Article 4(2) of Regulation (EC)
in the
No 1049/2001 concerning the protection of the purpose of
inspections and investigations.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145 of
31.5.2001, p. 43).

Action brought on 29 September 2008 — FIFA v OHIM —
Ferrero (WORLD CUP 2006)

(Case T-444/08)

(2008/C 313/88)

Language in which the application was lodged: English

Parties

Applicant: Fédération Internationale de Football Association
(FIFA) (Zurich, Switzerland) (represented by: D. Alexander QC,
A. Barav, Barrister, R. Buchel and C. Rassmann, lawyers)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Ferrero
OHG mbH (Stadtallendorf, Germany)

Form of order sought

— Annul, in whole or in part, the decision of the First Board
of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 20 June 2008 in case
R 1466/2005-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of invalidity: The word mark ‘WORLD CUP 2006’ for
goods and services in classes 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 41 and 42 — Community trade
mark registration No 2 152 817

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: The other party to the proceedings before the Board of
Appeal

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the
Cancellation Division

invalidity as a whole,

Pleas in law: (i) Infringement of Article 73 and 74(1) of Council
Regulation No 40/94 in so far as the Board of Appeal has
based, largely, its decision on Article 7(1)(c) of Council Regu-
lation No 40/94, a provision which was neither invoked by the
other party to the proceedings before the Board of Appeal, nor
relied upon by the Cancellation Division;
(ii) Alternatively,
infringement of Article 7(1)(c) of Council Regulation No 40/94
as the Board of Appeal failed to consider the registered Com-
munity trade mark subject of the application for a declaration
of
the average
consumer and to apply the relevant law relating to the assess-
ment of descriptiveness of the goods and/or services applied for;
and (iii) Infringement of Article 7(1)(b) of Council Regulation
No 40/94 as the Board of Appeal erred in its finding that the
registered Community trade mark subject of the application for
a declaration of invalidity was devoid of the necessary distinctive
character; and (iv) Infringement of Articles 7(3) and 51(2) of
Council Regulation No 40/94 as the Board of Appeal erred in
its finding that the registered Community trade mark subject of
the application for a declaration of invalidity had not acquired a
distinctive character for services in class 41.

through the eyes of